Posted on November 19, 2015
Protecting people in vulnerable situations is an important public policy, and the appointment of a legal guardian to watch the safety and interests of a person who may not have the ability to fully do so is a common method used to support this policy. Legal guardians constitute one aspect of family law that does not get as much attention as topics like divorce and child custody, but it can fill an important gap in the lives of children and incompetent or incapacitated adults. A Miami woman, in a recent article of People Magazine, was appointed the legal guardian for 900 children. The children came from parents who entered the U.S. illegally, which can leave the children without parental oversight due to deportation. The appointment of a legal guardian may be useful in a variety of situations where children are not receiving adequate care. For children without parents or other family members to look after them, legal guardianship is usually the only alternative to foster care. An overview of the process to become a legal guardian will be presented below with the aim of informing those who may know of a child in a precarious situation.Who is Qualified to be a Legal Guardian?
Legal guardians are appointed to protect the interests of wards of the state. Typically, wards of the State are minor children living in foster care due to a dependency case or some other circumstance that leaves them without an adult with legal authority to act their behalf.
The qualifications for legal guardians under Florida law differ according to the person’s residency status. If the person is a resident of the state, the only requirement is that the person must be at least 18 years old. Nonresidents must satisfy more stringent requirements that limit guardians to those related to the ward by blood, adoption or spouse, if the ward is an incapacitated or incompetent adult.
There are also circumstances that will prohibit a person from serving as a guardian. Factors that would preclude an appointment include:
- a felony conviction;
- inability to discharge the duties of a guardian due to illness or incapacity;
- a finding by a court that a person committed abuse, neglect or abandonment against a child; and
- anyone who pled no contest or guilty to a charge related to sexual and violent offenses.
Anyone who wishes to become a legal guardian must first file an application in court that includes a description of the qualifications that person has to justify an appointment. Additionally, the application must list any other wards for which the applicant serves as guardian. Florida law also requires all applicants to submit to a credit history investigation, a criminal history investigation and a background screening. The court does have the option of waiving the credit history and background check requirements, but the criminal history check is always necessary. Courts will give preference to those related by marriage or blood to the ward, the wishes of a minor over the age of 14, and the wishes of the ward’s next of kin, among others.
Finally, there are education requirements that each person appointed to be a guardian must complete to ensure they are competent to fill the role. This training must be at least eight hours long and take place within four months of appointment. Topics covered during the training must include:
- the legal duties and responsibilities of the guardian;
- the ward’s rights;
- local resources available to assist the ward; and
- how to prepare reports on the ward’s living situation and financial accountings of the ward’s property.
Deciding to serve as a legal guardian comes with a lot of responsibility and should not be undertaken without heavy consideration. If you are considering taking on this role, speaking to a family law attorney about the legalities of this appointment would be beneficial for both the potential guardian and the ward. Stok Kon + Braverman, in Fort Lauderdale and Boynton Beach, have the necessary experience to guide you in this process. Contact us today for a confidential consultation.